Copyright and Digital Files

Can I backup my computer software?

Yes, under certain conditions as provided by section 117 of the Copyright Act. Although the precise term used under section 117 is "archival" copy, not "backup" copy, these terms today are used interchangeably. This privilege extends only to computer programs and not to other types of works.

Under section 117, you or someone you authorize may make a copy of an original computer program if:

• the new copy is being made for archival (i.e., backup) purposes only;
• you are the legal owner of the copy; and
• any copy made for archival purposes is either destroyed, or transferred with the original copy, once the original copy is sold, given away, or otherwise transferred.

You are not permitted under section 117 to make a backup copy of other material on a computer's hard drive, such as other copyrighted works that have been downloaded (e.g., music, films).

It is also important to check the terms of sale or license agreement of the original copy of software in case any special conditions have been put in place by the copyright owner that might affect your ability or right under section 117 to make a backup copy.

Can I buy or sell backup copies of computer software (on an online auction or from a website)? Can I buy a backup copy of software I already own?

No. You may transfer a backup copy only with the sale of the original copy of the software, as noted above (or have a backup copy transferred to him, if the consumer is the purchaser). But the Copyright Act does not permit you to simply "buy" or "sell" backup copies from or to a third party.

We have been made aware of websites that are offering to sell "backup" copies of software via download over the Internet or in a custom-burned CD-R format, under the guise that section 117 permits this. Section 117 does NOT permit this. Again, section 117 does not allow you to "buy" or "sell" backup copies from or to a third party. It does not allow anyone to distribute "backup" copies to the public. Such activity is also likely to be a violation of the terms of your license to the software. In many cases these sites appear to be a front for distribution of illegal copies, which is copyright infringement. You should be wary of sites that offer to "sell" you a backup copy.

Can I copyright my website?

The original authorship appearing on a website may be protected by copyright. This includes writings, artwork, photographs, and other forms of authorship protected by copyright.

Can I copyright my domain name?

Copyright law does not protect domain names. The Internet Corporation for Assigned Names and Numbers (ICANN), a nonprofit organization that has assumed the responsibility for domain name system management, administers the assignation of domain names through accredited registers.

Is it legal to download works from peer-to-peer networks and if not, what is the penalty for doing so?

Uploading or downloading works protected by copyright without the authority of the copyright owner is an infringement of the copyright owner's exclusive rights of reproduction and/or distribution. Anyone found to have infringed a copyrighted work may be liable for statutory damages up to $30,000 for each work infringed and, if willful infringement is proven by the copyright owner, that amount may be increased up to $150, 000 for each work infringed. In addition, an infringer of a work may also be liable for the attorney's fees incurred by the copyright owner to enforce his or her rights.

Whether or not a particular work is being made available under the authority of the copyright owner is a question of fact. But since any original work of authorship fixed in a tangible medium (including a computer file) is protected by federal copyright law upon creation, in the absence of clear information to the contrary, most works may be assumed to be protected by federal copyright law.

Since the files distributed over peer-to-peer networks are primarily copyrighted works, there is a risk of liability for downloading material from these networks. To avoid these risks, there are currently many "authorized" services on the Internet that allow consumers to purchase copyrighted works online, whether music, ebooks, or motion pictures. By purchasing works through authorized services, consumers can avoid the risks of infringement liability and can limit their exposure to other potential risks, e.g., viruses, unexpected material, or spyware.